Not Exactly a Valentine

In a week awash with the sentiments of St. Valentine, it
may seem unseemly to comment upon a recent opinion in the Supreme Court of
Virginia. The case, alas, had nothing to do with sentiment. As M. Chirac is
wont to say, au contraire.

The case involved a suit brought by Maggie against her
lover Charles. I have changed the litigants’ names to protect the infected.
The case number is 040804, decided by unanimous opinion on Jan. 14. Justice
Elizabeth B. Lacy spoke for the Virginia court.

The facts are not seriously in dispute. Charles and
Maggie, unmarried adults, entered into an intimate relationship in October
2001. For many months they engaged in “unprotected sexual conduct.” That
relationship ended rudely in November 2003. That was when Maggie noticed that
telltale blisters had begun to form. It was a serious case of herpes.

Given today’s litigious society, Maggie naturally took
appropriate measures. Instead of shooting him, she sued him. In her complaint,
she alleged that Charles knew that he had the kind of herpes that may be
sexually transmitted, that he knew the virus was contagious, and that he never
told her. She sought both compensatory and punitive damages.

Charles filed a demurrer. The bounder asserted that
Maggie’s injuries were her own fault: She had voluntarily and repeatedly
engaged in an act that was illegal in Virginia, to wit, fornication between
unmarried persons. The state law, Va. Code Sect. 18.2-344, makes it a Class A
misdemeanor “for any person, not being married, voluntarily to have sexual
intercourse with any other person.” It is hornbook law that recovery will
not lie in cases of injury resulting from illegal activity.

The trial court sustained his demurrer, but Virginia’s
Supreme Court reversed. Whatever weight might once have attached to laws
forbidding adult fornication, said Justice Lacy, that weight vanished with the
U.S. Supreme Court’s 6-3 decision two years ago in the homosexual case of Lawrence
v. Texas. With that decision, the sexual activity between Maggie and
Charles became a constitutionally protected liberty. It no longer matters that
a majority of Virginia voters may view unmarried fornication as immoral. That
is not “a sufficient reason for upholding a law prohibiting the practice.”

Justice Lacy emphasized that the court’s opinion does
not affect the Commonwealth’s police power regarding regulation of public
fornication, prostitution and other such offenses. These laws remain in
effect. But a law that “improperly abridges a personal relationship that is
within the liberty interest of persons to choose” cannot be sustained. The
Constitution says that no state may deprive any person of “liberty”
without due process of law. Voluntary private fornication between consenting
adults has become a form of constitutional liberty. As Cato was wont to say,
“quod erat demonstrandum.”

This may not have been exactly what the framers of the
14th Amendment intended—but that was 1868, and this is now. The Virginia
court’s opinion in the case of Charles and Maggie takes us one more mile
along a course denounced by Justice Antonin Scalia in the Lawrence case
in June 2003. That was the case in which the high court, speaking through
Justice Anthony Kennedy, nullified all state laws punishing private
homosexuality.

In a scathing dissenting opinion, joined by Justice
Thomas and Chief Justice Rehnquist, Scalia said his brethren had put into
question every law against “adult incest, prostitution, masturbation,
adultery, fornication, bestiality and obscenity.” He scoffed at Justice
Kennedy’s assertion of “an emerging awareness that liberty gives
substantial protection to adult persons in deciding how to conduct their
private lives in matters pertaining to sex.”

Justice Kennedy, swept away on the tides of his own
eloquence, had praised an “emerging awareness of liberty” that develops as
time goes by. The framers of the Constitution, he mused, had not grasped
“the components of liberty in its manifold possibilities.” Later
generations understand that some laws “once thought to be necessary and
proper,” such as the Texas statute, “now serve only to oppress.”

Getting back to Maggie’s suit against the bounder: Now
that Charlie’s demurrer has been cast aside, he may have to stand trial on
the merits of her case. Ultimately we may learn a little more about the
manifold possibilities of liberty. Maggie could testify about one of those
possibilities. Its awareness emerged early in November 2003.